Howard v. Masterson
| Decision Date | 22 April 1890 |
| Citation | 13 S.W. 635 |
| Parties | HOWARD <I>v.</I> MASTERSON. |
| Court | Texas Supreme Court |
B. L. Aycock, for appellant. Cowan & Fisher, for appellee.
The appellant brought this suit against appellee in the ordinary form of an action of trespass to try title, alleging that he was the owner of an undivided one-third interest in the land in controversy, and that the heirs of John Clark, deceased, (who were neither named nor made parties to the suit,) were the owners of the other undivided two-thirds. Upon the trial the plaintiff sought to prove his case by showing that both he and defendant claimed title under Clarence W. McGreal as a common source, and that as between the two his was the superior title. He did not attempt to deraign title from the sovereignty of the soil. He introduced in evidence a deed from Clarence McGreal to Lucy E. Howard, his wife, for the land in controversy, dated July 26, 1878, and, in order to establish the common source, also introduced a deed from the sheriff of Nolan county to appellee purporting to convey the interest of Clarence W. McGreal and Cornelia Levin on the land in controversy. This deed was dated April 4, 1883. The sale by the sheriff was made by virtue of an execution issued upon a judgment against Clarence W. McGreal and Cornelia Levin as heirs of Peter and Mary C. McGreal. Whatever interest passed by the deed to Mrs. Howard was prima facie the community property of appellant and his wife. The court below held that the plaintiff had failed to show that he and defendant claimed under a common source, and gave judgment for the defendant. We are of opinion that the court did not err in so holding. When the plaintiff in an action of trespass to try title has proved that both he and the defendant claim from the same grantor, and that he has the superior title as emanating from that source, he has made out a prima facie case. No other facts appearing, it is to be presumed that the defendant claims no other title. The effect of his claim is to assert that, prior to the conveyance through which he derives his right, the title was in the common source, and this is deemed sufficient to relieve the plaintiff from the necessity of proving that fact. The rule is just, useful, and convenient. But "it is not broadly true to say, as is sometimes said, that when two persons trace title to the same grantor each is estopped as against the other." Bigelow, Estop. (4th Ed.) p. 335. The...
To continue reading
Request your trial
-
Bernard River Land Development Co. v. Sweeny
...135 Tex. 370, 143 S.W.2d 928; Glover v. Thomas, 75 Tex. 506, 12 S.W. 684; House v. Reavis, 89 Tex. 626, 35 S.W. 1063; Howard v. Masterson, 77 Tex. 41, 13 S.W. 635; Huth v. Heermann, 5 Tex.Civ.App. 655, 24 S. W. 664; Joyner v. Christian, 131 Tex. 274, 279, 113 S.W.2d 1229; Kelley v. Neal, Te......
-
Straus v. Shamblin
...introduce any of the instruments relied upon by appellant as his source of title, but rested on their prima facie showing. Howard v. Masterson, 77 Tex. 41, 13 S.W. 635. At this point the appellant could not question the deed from the bank to the Shamblins, for to have done so would have des......
-
Taylor v. Doom
...It is held that the question of common source is one of burden of proof, a rule of evidence, and not of estoppel. Howard v. Masterson, 77 Tex. 41, 13 S. W. 635; Rice v. Railway, 87 Tex. 90, 26 S. W. 1047, 47 Am. St. Rep. 72. In the case last cited the court, in discussing this question said......
-
Temple Lumber Co. v. Arnold
...Authorities above cited; Campbell v. McLoughlin (Tex. Civ. App.) 270 S. W. 257. The issue is one of burden of proof (Howard v. Masterson, 77 Tex. 41, 13 S. W. 635), and when established shifts the burden to the defendant to show a superior title under the common source, or to show that he h......